Lots of Great Election Law Stuff in New Issue of Yale Law Journal

Volume 121, Issue 7
May 2012

  • 1584
    Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments
    Richard M. Re & Christopher M. Re
    121 Yale L.J. 1584 (2012).

    The Reconstruction Amendments are justly celebrated for transforming millions
    of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side.
    In arguing that voting laws should not discriminate on the basis of morally insignificant statuses,
    such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of
    retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former
    slaves were not just compared with virtuous military veterans, as commentators have long
    observed, but were also contrasted with immoral criminals. The mutually supportive
    relationship between egalitarian enfranchisement and punitive disenfranchisement—between
    voting and vice—motivated and shaped all three Reconstruction Amendments.
    Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated
    the enfranchisement of black Americans. This conclusion complicates the conventional
    understanding of how and why voting rights expanded in the Reconstruction era.

    Criminal disenfranchisement’s previously overlooked constitutional history illuminates
    four contemporary legal debates. First, the connection between voting and vice provides new
    support for the Supreme Court’s thoroughly criticized holding that the Constitution endorses
    criminal disenfranchisement. Second, Reconstruction history suggests that the Constitution’s
    endorsement of criminal disenfranchisement extends only to serious crimes. For that reason,
    disenfranchisement for minor criminal offenses, such as misdemeanors, may be
    unconstitutional. Third, the Reconstruction Amendments’ common intellectual origin refutes
    recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the
    Fourteenth Amendment’s endorsement of criminal disenfranchisement. Finally, the historical
    relationship between voting and vice suggests that felon disenfranchisement is specially
    protected from federal regulation but not categorically immune to challenge under the Voting
    Rights Act.

    Read more…

  • 1672
    Due Process as Separation of Powers
    Nathan S. Chapman & Michael W. McConnell
    121 Yale L.J. 1672 (2012).

    From its conceptual origin in Magna Charta, due process of law has required that
    government can deprive persons of rights only pursuant to a coordinated effort of separate
    institutions that make, execute, and adjudicate claims under the law. Originalist debates about
    whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive
    due process” have obscured the way that many American lawyers and courts understood due
    process to limit the legislature from the Revolutionary era through the Civil War. They
    understood due process to prohibit legislatures from directly depriving persons of rights,
    especially vested property rights, because it was a court’s role to do so pursuant to established
    and general law. This principle was applied against insufficiently general and prospective
    legislative acts under a variety of state and federal constitutional provisions through the
    antebellum era. Contrary to the claims of some scholars, however, there was virtually no
    precedent before the Fourteenth Amendment for invalidating laws that restricted liberty or the
    use of property. Contemporary resorts to originalism to support modern substantive due process
    doctrines are therefore misplaced. Understanding due process as a particular instantiation of
    separation of powers does, however, shed new light on a number of key twentieth-century cases
    which have not been fully analyzed under the requirements of due process of law.

    Read more…

  • 1808
    Redistricting Commissions: A Better Political Buffer?
    Bruce E. Cain
    121 Yale L.J. 1808 (2012).

    The new institutionalism in election law aims to lessen the necessity of court
    intervention in politically sensitive election administration matters such as redistricting by
    harnessing politics to fix politics. Many hope that independent citizen commissions (ICCs) will
    improve the politics associated with drawing new district boundaries. As the recent round of
    redistricting comes to a close, I offer some observations about ICCs as effective court
    redistricting buffers. My basic points are as follows. Independent citizen commissions are the
    culmination of a reform effort focused heavily on limiting the conflict of interest implicit in
    legislative control over redistricting. While they have succeeded to a great degree in that goal,
    they have not eliminated the inevitable partisan suspicions associated with political line-drawing
    and the associated risk of commission deadlock. Additional political purity tests and more careful
    vetting of the citizen commissioners are not the solution. I argue that ICCs in the future should
    adopt a variation of New Jersey’s informal arbitration system as a means of reducing partisan
    stakes and encouraging coalition building among stakeholders.

    Read more…

  • 1846
    Districting for a Low-Information Electorate
    Christopher S. Elmendorf & David Schleicher
    121 Yale L.J. 1846 (2012).

    Most commentary on redistricting is concerned with fairness to groups, be they
    racial, political, or geographic. This Essay highlights another facet of the redistricting problem:
    how the configuration of districts affects the ability of low-information voters to secure
    responsive, accountable governance. We show that attention to the problem of voter ignorance
    can illuminate longstanding legal-academic debates about redistricting, and that it brings into
    view a set of questions that deserve our attention but have received little so far. District designers
    should be asking how alternative maps are likely to affect local media coverage of representatives,
    as well as the “branding” strategies of political party elites. Bearing these questions in mind, we
    offer some tentative suggestions for reform.

    Read more…

  • 1888
    Weightless Votes
    Joseph Fishkin
    121 Yale L.J. 1888 (2012).

    Does “one person, one vote” protect persons, or voters? The Court has never
    resolved this question. Current practice overwhelmingly favors equal representation for equal
    numbers of persons. Opponents charge, however, that this approach dilutes the “weight” of
    some individual voters’ votes. This Essay examines what that might mean, and concludes that
    there is no coherent individual interest in the “weight” of a vote. It argues that the one person,
    one vote doctrine is really about something else: protecting the political power of numerical
    groups. In light of this conclusion, the last section of this Essay explores whether the numerical
    groups this doctrine protects ought to include all persons living in a jurisdiction, or only the
    citizens of voting age.

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  • 1912
    Recognizing Character: A New Perspective on Character Evidence
    Barrett J. Anderson
    121 Yale L.J. 1912 (2012).

    Courts have historically regulated the use of character in trials because of its
    potential to prejudice juries. In order to regulate this type of proof, courts must be able to
    recognize what is and is not character evidence, but past attempts to define character in the law
    of evidence have been unsatisfactory. This Note proposes a new framework to help courts
    unravel this age-old mystery. By considering legal scholarship in conjunction with psychological
    research and employing common tools of statutory interpretation, this Note contends that proof
    must have two components for it to be regulated by the character scheme in the Federal Rules of
    Evidence: propensity and morality. It then explains the elements of each component under the
    Federal Rules regime, examines several evidentiary examples drawn from real cases to illustrate
    how courts would apply the proposed framework, and concludes by discussing the broader
    implications of this new perspective on character evidence.

    Read more…

  • 1970
    Cross-National Patterns in FCPA Enforcement
    Nicholas M. McLean
    121 Yale L.J. 1970 (2012).

    This Note undertakes an empirical examination of U.S. enforcement actions under
    the Foreign Corrupt Practices Act (FCPA) in order to explore the cross-national patterns
    associated with the United States’ international antibribery enforcement. I investigate a number
    of possible determinants of FCPA enforcement, including variation in the level of U.S. foreign
    direct investment (FDI), cross-national variation in corruption levels, the level of foreign
    regulatory and enforcement cooperation with the United States, and U.S. foreign policy
    interests. I find that higher levels of U.S. FDI and higher levels of corruption are significantly
    associated with increased FCPA enforcement, as is the presence of bilateral mechanisms of
    enforcement cooperation. In contrast, other variables—including the level of foreign policy
    alignment between the host nation and the United States—do not appear to be associated with
    variation in FCPA enforcement. In addition, I find that cross-national variation in the number of
    FCPA cases in a given country is much more closely associated with actual recorded experience
    with corruption (as measured by cross-national survey instruments) than with more widely used
    measures of corruption perceptions. Finally, I employ data on past enforcement actions to
    generate a cross-national measure of the “FCPA enforcement-action intensity” of U.S. FDI, and I
    consider the potential use of such an index as a measure of FCPA country risk.

    Read more…

One Person, No Vote: Staggered Elections, Redistricting, and Disenfranchisement
Margaret B. Weston

121 Yale L.J. 2013 (2012).

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